Hilton v. Bachman

• Citation: 39 N.W. 419,24 Neb. 490
• Parties: GEORGE H. HILTON, JAMES F. HILTON, AND JOSEPH B. HILTON, APPELLANTS, v. KATHRINA, HENRY, AMELIA, SOPHIA, AND WILHELMINA BACHMAN, HEIRS AT LAW OF JOHN BACHMAN, DECEASED, AND J. J. IMHOFF, JOHN AND AUGUSTA HILTON, AND JOHN HILTON, TRUSTEE, APPELLEES
• Decision Date: 26 September 1888
• Court: Supreme Court of Nebraska

39 N.W. 419

24 Neb. 490

GEORGE H. HILTON, JAMES F. HILTON, AND JOSEPH B. HILTON, APPELLANTS,
v.
KATHRINA, HENRY, AMELIA, SOPHIA, AND WILHELMINA BACHMAN, HEIRS AT LAW OF JOHN BACHMAN, DECEASED, AND J. J. IMHOFF, JOHN AND AUGUSTA HILTON, AND JOHN HILTON, TRUSTEE, APPELLEES

Supreme Court of Nebraska

September 26, 1888

APPEAL from the district court of Lancaster county. Heard below before HAYWARD, J.

AFFIRMED.

George H. Hilton, pro se, cited: Perry on Trusts, Secs. 274-288, and cases cited. Wade Notice, Sec. 17. Willes v. Chandler, 1 McCrary, 276. Williamson v. Berry, 8. How., 495.

John S. Gregory and J. R. Webster, for appellants, cited: Drane v. Gunter, 19 Ala. 731. Shepherd v. McEvers, 4 John. Ch., 136. Cruger v. Halliday, 11 Paige, 314. Wilson v. Towle, 36 N.H. 129. 1 Perry Trusts, 3d Ed., Sec. 268 and note 2. Id., Sec. 285-7. Singleton v. Scott, 11 Iowa 589, 597. Gray v. Brignardello, 1 Wall. 627. Shriver v. Lynn, 2 How., 43. Rorer Judicial Sales, Sec. 56. Rogers v. Dill, 6 Hill, 415. In re Price, 67 N.Y. 233. In re Ellison, 5 Johns. Ch., 261.

Harwood, Ames & Kelly, and Mason & Whedon, for appellees, cited: Mills v. Paynter, 1 Neb. 444. Miller v. Finn, 1 Neb. 289. State v. Buffalo County, 6 Neb. 461. Jennings v. Simpson, 12 Neb. 565. McGavock v. Pollack, 13 Neb. 537. Bryant v. Estabrook, 16 Neb. 220. Gould v. Loughran, 19 Neb. 392. McCormick v. Paddock, 20 Neb. 489. Wash. Real Prop., 3d Ed., 478 and notes. Jackson v. Delaney, 13 Johns., N.Y. 537. Freeman on Judgments, 151. Joyce v. McAvoy, 31 Cal. 274. Benson v. Cilley, 8 O. S., 604. Tyler Infancy and Coverture, 52, 172, 289 et seq.

OPINION

[24 Neb. 491] REESE, CH. J.

This action was instituted in the district court for the purpose of setting aside certain conveyances to real estate, and to remove from his trusteeship one John Hilton, of the state of Iowa, and the appointment of another in his stead.

The record in the case is voluminous, and from the transcript of the proceedings it is very difficult to understand the exact condition of the case. The amended petition filed in the district court is denominated an "Amended Bill in Equity," in writing which the pleader has followed the common law form of pleading, styling the plaintiffs orators and indulging in the usual circumlocution of a common law pleading. The district court would have been justified, upon its attention being called to the fact, upon a refusal of plaintiff to reform his petition, in striking the paper from the files and requiring a petition [24 Neb. 492] to be filed which would have conformed to the provisions of the code.

The transcript contains a motion filed in the district court by defendants, by which the district court was asked to strike out [39 N.W. 420] a considerable portion of the amended petition. This motion is quite lengthy, containing ten counts or numbered paragraphs, in which the parts of the petition objected to are quoted at some length. The transcript shows that the motion was submitted to the court and sustained "as to the 3d, 5th, 6th, and 10th paragraphs of said amended petition." The petition is not numbered by paragraphs, and it is impossible for us to know whether the parts stricken out are now copied into the transcript of the petition or not. We must presume that they are, for if they were omitted there could be no necessity for the copy of the motion which is in the record. But what particular paragraphs are referred to is beyond the power of any one to say from this record.

These observations are not made for the purpose of criticizing the action of counsel in the preparation of the record, but for the purpose of again calling attention to the very important rule of practice which requires a record to contain nothing but what is essential to a full understanding of the case. The summons and return thereon, the alias summons and return thereto, the demurrers and motions, with the rulings of the court thereon, should all have been omitted from the record in this court, no question being presented which required them to be included in the transcript.

It appears that on the 26th day of October, 1861, the plaintiff, George H. Hilton, executed and delivered to his brother, John Hilton, a deed to a large tract or body of land situated in Lancaster county, in trust and for the benefit of George L. Hilton, James F. Hilton, and Joseph B. Hilton, in equal portions; that at that time James F. and Joseph B. were infants; that on the 16th day of September, [24 Neb. 493] 1863, John Hilton--the trustee--conveyed the land to Alice B. Hilton, who was the daughter of George H. Hilton, and a sister of the cestui que trusts named in the deed to John. This deed, while not in form a trust deed, was evidently intended as and for a transfer of the trust from John to Alice. The deed was as follows:

"Know all men by these presents, that John Hilton and Margaret Hilton, his wife, the John Hilton as trustee, as hereinafter stated, of Madison county, state of Iowa, in consideration of the sum of one thousand dollars in hand paid, do hereby sell and convey unto Alice B. Hilton, of Hamilton county, and state of Ohio, the following described premises to-wit:" (We omit the description of the land) "and being the same premises conveyed by George H. Hilton to said John Hilton in trust, etc., by deed dated 26th October, 1861, and we do hereby covenant to warrant and defend the said premises against the lawful claims of ourselves, and the said Margaret Hilton hereby relinquishes all her right of dower in and to the above described premises, the said John Hilton herein named conveys as trustee of George L., Joseph B., and James F. Hilton."

This conveyance was evidently made for the purpose of retaining the title to the real estate within the family of George H. Hilton, the original grantor, and under the supposed authority to do so, conferred by the deed from George H. to John. That deed was, in part, as follows:

"Know all men by these presents, that George H. Hilton, of Hamilton county, Ohio, in consideration of one dollar and natural love, etc., to him paid by John Hilton, of Madison county, Iowa, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, and convey to the said John Hilton, his heirs and assigns forever, in trust for the benefit of my sons, George L., James F., and Joseph B. Hilton, in equal portions. Said trustee having authority to sell and convey all or any portion at any time [24 Neb. 494] or in any way at his discretion, for their benefit, the following described real estate, to-wit," etc.

On the 22d day of November, 1865, Alice B. Hilton...